CKDI Pty Ltd as trustee for CKDI Unit Trust v Ku-ring-gai Council [2023] NSWLEC 1018

CKDI Pty Ltd as trustee for CKDI Unit Trust v Ku-ring-gai Council [2023] NSWLEC 1018

Owners' consent for works shown in the development application and accompanying documents on neighbouring land is a jurisdictional precondition; as owner's consent for SP 83732, 3-13 Bundarra Avenue was not obtained at determination, the Court has no power to grant consent. Alternatively, the stormwater management preconditions in LEP 2015 are not satisfied, so consent cannot be granted.

Jurisdiction
Australia
Judgment Date
17 January 2023
Procedural Posture
Development Appeal (class 1) / Final Determination
Outcome
Appeal dismissed; development application refused
Legal Topics
['development Application' 'heritage Conservation' 'stormwater Management' "owners' Consent" 'easements']
['planning Law' 'environmental Law'] ['development Application' 'heritage Conservation' 'stormwater Management' "owners' Consent" 'easements']

Case Brief

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Procedural Posture

Development Appeal (class 1) / Final Determination

Legal Issues

  1. 1 ['What are the works for which consent is sought by the development application?' 'How is a development application amended?' "Do the works for which consent is sought have owners' consent?" 'Does the proposed development provide adequate water management?' 'Does the stormwater management system include all reasonable measures to avoid adverse impacts on adjoining land?']

Ratio Decidendi

Owners' consent for works shown in the development application and accompanying documents on neighbouring land is a jurisdictional precondition; as owner's consent for SP 83732, 3-13 Bundarra Avenue was not obtained at determination, the Court has no power to grant consent. Alternatively, the stormwater management preconditions in LEP 2015 are not satisfied, so consent cannot be granted.

Court Disposition

Appeal dismissed; development application refused

Orders

  • ['The appeal is dismissed.' "Development application DA0095/21 seeking consent for the consolidation of existing lots, conservation and restoration of former group home 'Warrina', reinstatement of tennis court and gardens, the construction of 8 x multi-dwelling houses, basement parking and associated site works at 8...